Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 157 Filed: 01/18/19 Page: 1 of 11 PAGEID #: 7040 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION ____________________________________ ) OHIO A. PHILIP RANDOLPH ) INSTITUTE, et al. ) ) No. 1:18-cv-00357-TSB-KNM-MHW Plaintiffs, ) ) Judge Timothy S. Black v. ) Judge Karen Nelson Moore ) Judge Michael H. Watson LARRY HOUSEHOLDER, Speaker of the ) Magistrate Judge Karen L. Litkovitz Ohio House of Representatives, et al. ) ) Defendants. ) ____________________________________) [JOINT PROPOSED] FINAL PRETRIAL ORDER This matter came before the Court at a Final Pretrial Conference held on February 11, 2019, pursuant to Fed. R. Civ. P. 16. I. APPEARANCES1 For Plaintiffs: From ACLU of Ohio Foundation: Freda J. Levenson (Trial Attorney) Elizabeth Bonham David J. Carey From American Civil Liberties Union Foundation: T. Alora Thomas-Lundborg Theresa J. Lee Emily Rong Zhang Dale E. Ho From Covington & Burling LLP: Robert D. Fram Nitin Subhedar 1 Other attorneys not listed below who file a notice of appearance in this action may appear on behalf of the parties at trial. 1 Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 157 Filed: 01/18/19 Page: 2 of 11 PAGEID #: 7041 Jeremy Goldstein Robert S. Day Perrin Cooke Isaac Wood For Defendants: From Ogletree, Deakins, Nash, Smoak & Stewart, P.C.: Phillip J. Strach (Trial Attorney) Michael D. McKnight Brodie D. Erwin Alyssa Riggins From the Ohio Attorney General’s Office: Steven T. Voigt Nicole M. Koppitch Ann Yackshaw For Intervenors: From Baker Hostetler LLP: Patrick T. Lewis (Trial Attorney) E. Mark Braden (motion for leave to appear pro hac vice forthcoming) Katherine L. McKnight Richard B. Raile Robert J. Tucker Erika Dackin Prouty II. NATURE OF ACTION AND JURISDICTION A. This is an action for injunctive and declaratory relief, challenging the Ohio congressional map as an unconstitutional partisan gerrymander in violation of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, of the right to vote guaranteed by the First and Fourteenth Amendments, and of Article I, § 4. B. Plaintiffs invoke the jurisdiction of the Court under 28 U.S.C. §§ 1331, 1343, 1357, and 42 U.S.C. § 1983, and jurisdiction to grant declaratory relief under 28 U.S.C. §§ 2201, 2202. Defendants and Intervenors deny that the Court has jurisdiction to hear the case or to grant the declaratory relief Plaintiffs seek. C. The jurisdiction of the Court is disputed. The parties dispute whether Plaintiffs’ claims are justiciable and whether Plaintiffs have standing to bring this action. 2 Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 157 Filed: 01/18/19 Page: 3 of 11 PAGEID #: 7042 D. The parties have not consented to entry of final judgment by the United States Magistrate Judge. III. TRIAL INFORMATION A. The estimated length of trial is 10 days. B. Trial to the court has been set for March 4, 2019. IV. AGREED STATEMENT AND LISTS A. General Nature of the Parties’ Claims (1) Plaintiffs’ Claims: In Claim 1, Plaintiffs allege that Ohio’s congressional map violates their First Amendment rights to associate with and advocate for a political party, to vote for their candidate of choice, to express their political views, and to participate in the political process, In Claim 2, Plaintiffs allege that Ohio’s congressional map violates their right to vote under the First and Fourteenth Amendment. Partisan gerrymandering substantially burdens the right to vote. A voter is “deprive[d] . of the opportunity to cast a meaningful ballot” since the legislature constrains voters’ ability to “vote for the candidate of their choice.” Burdick v. Takushi, 504 U.S. 428, 447 (1992) (Kennedy, J., dissenting) In Claim 3, Plaintiffs allege that Ohio’s congressional map violates their right to Equal Protection under the Fourteenth Amendment. Each individual Plaintiff was placed in a district where their vote carries less weight or consequence than it would under a neutrally drawn map. The districts were each drawn to privilege partisan outcomes at the expense of all other criteria. Each district was constructed to disfavor Democratic voters on the basis of their political affiliation, with no legitimate, let alone compelling, reason to do so. The map and its individual districts also have the “invidiously discriminatory” effect of “minimiz[ing] or cancel[ing] out the voting strength of . political elements of the voting population.” Gaffney v. Cummings, 412 U.S. 735, 751 (1973). In Claim 4, Plaintiffs allege that since Ohio’s map has both the intent and effect of a partisan gerrymander, it exceeds the state’s power under Article I of the Constitution. (2) Defendants’ Claims: Ohio’s current congressional districting plan comports fully with the Constitution. Defendants do not assert any affirmative counterclaims in this matter but oppose all of Plaintiffs’ claims and reassert the defenses asserted in their Answer to Plaintiffs’ Second Amended Complaint. (D.E. 37). (3) Intervenors’ Claims: Intervenors reassert all defenses and denials contained in their Answer to Plaintiffs’ Second Amended Complaint. Intervenors further assert that Plaintiffs are not entitled to any relief as asserted in Count I under the First Amendment for the following reasons: 3 Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 157 Filed: 01/18/19 Page: 4 of 11 PAGEID #: 7043 a. Plaintiffs lack standing to bring this claim b. Plaintiffs’ claim is non-justiciable c. Plaintiffs cannot show a violation under First Amendment standards for the type of claim they assert d. The evidence does not show a violation of the First Amendment Intervenors assert that Plaintiffs are not entitled to any relief as asserted in Count II under the Fourteenth Amendment’s guarantee of the right to vote for the following reasons: a. Plaintiffs lack standing to bring this claim b. Plaintiffs’ claim is non-justiciable c. Plaintiffs cannot show a violation under Fourteenth Amendment standards for the type of claim they assert d. The evidence does not show a violation of the Fourteenth Amendment Intervenors assert that Plaintiffs are not entitled to any relief as asserted in Count III under the Fourteenth Amendment’s guarantee of equal protection for the following reasons: a. Plaintiffs lack standing to bring this claim b. Plaintiffs’ claim is non-justiciable c. Plaintiffs cannot show a violation under Fourteenth Amendment standards for the type of claim they assert d. The evidence does not show a violation of the Fourteenth Amendment Intervenors assert that Plaintiffs are not entitled to any relief as asserted in Count IV under Article I, which empowers state legislatures to redistrict, for the following reasons: a. Plaintiffs lack standing to bring this claim b. Plaintiffs’ claim is non-justiciable c. Plaintiffs cannot show a violation under Article I standards for the type of claim they assert d. The evidence does not show a violation of Article I Intervenors, as an affirmative defense, assert that Plaintiffs’ claims are barred by the doctrine of laches because they waited inexcusably for years to bring this case, prejudicing Intervenors who reasonably relied on the districts created by the 2012 plan remaining in place for 10 years. B. Uncontroverted Facts The parties have entered into certain stipulations as to document authenticity. This includes (1) a stipulation as to the authenticity of the H.B. 369 sponsor testimony; (2) a stipulation regarding the authenticity of emails and their attachments at LWVOH_0052431, LWVOH_0052437, and LWVOH_0052438. The parties have agreed in principle to a stipulation regarding the home addresses of the individual Plaintiffs and members of organizational Plaintiffs. 4 Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 157 Filed: 01/18/19 Page: 5 of 11 PAGEID #: 7044 The parties have exchanged sets of proposed uncontroverted facts. To confirm that such facts are indeed uncontroverted, counsel for Plaintiffs, Defendants, and Intervenors have agreed to confer following the filing of this Joint Pretrial Order. The parties will provide the Court will a single list of agreed-upon uncontroverted facts by February 6, 2019. Plaintiffs’ Proposed Uncontroverted Facts are attached as Appendix A. Defendants’ and Intervenors’ Proposed Uncontroverted Facts are attached as Appendix B. C. Issues of Fact and Law The parties have identified and exchanged sets of contested facts. (1) Plaintiffs: Plaintiffs respectfully submit that, despite Defendants and Intervenors’ pending motion for summary judgment, there are genuinely disputed issues of material facts. Issues of Fact: Plaintiffs present their Issues of Fact in Plaintiffs’ Statement of Contested Facts, attached as Appendix C. Issues of Law: Plaintiffs also identify contested issues of law in addition to those implicit in the foregoing issues of fact, including: a. Elements: • Are partisan gerrymandering claims justiciable? • What are the elements of partisan gerrymandering claims under the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the right to vote guaranteed by the First and Fourteenth Amendments, and Article I, § 4? • What standard applies to the parties’ relative burdens of proof? b. Discriminatory Intent: • What if any discriminatory intent must be shown to sustain a claim that partisan gerrymandering violates the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the right to vote guaranteed by the First and Fourteenth Amendments, or Article I, § 4? c. Discriminatory Effect: • What if any discriminatory effect must be shown